As filed with the Securities and Exchange Commission on June 18, 2002
Registration No. 333-73445
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRIKON TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 95-045321
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Ringland Way, Newport, Gwent NP18 2TA
(Address of Principal Executive Offices, Including Zip Code)
Trikon Technologies, Inc. 1991 Stock Option Plan
Trikon Technologies, Inc. 1998 Directors Stock Option Plan
(Full title of the plan)
------------------------------
Nigel Wheeler, President and Chief Executive Officer
Ringland Way
Newport, Gwent NP18 2TA, United Kingdom
(Name and address of agent for service)
44 (0) 1633 414 000
(Telephone number, including area code, of agent for service)
Copies to:
Stephen B. Selbst, Esq.
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020
(212) 547-5400
================================================================================
EXPLANATORY NOTE
The prospectus, containing information required by Part I of Form S-8
and related to this Post-Effective Amendment No. 1 to the Registration Statement
of Trikon Technologies, Inc. on Form S-8 (Registration No. 333-73445) is omitted
from this Post-Effective Amendment No. 1 in accordance with the Note to Part I
of Form S-8.
This Post-Effective Amendment No. 1 is being filed by Trikon
Technologies, Inc., a Delaware corporation (the "Registrant"), the successor
registrant to Trikon Technologies, Inc., a California corporation (the
"California Corporation"). This Post-Effective Amendment No. 1 is being filed
with the Securities and Exchange Commission (the "Commission") as the result of
the reincorporation merger (the "Reincorporation") that became effective on May
17, 2002. The Reincorporation was effected by a merger of the California
Corporation with and into the Registrant, which, prior to effecting the
Reincorporation, was a wholly owned subsidiary of the California Corporation.
Pursuant to the terms of the Agreement and Plan of Merger between the
Registrant and the California Corporation, each outstanding share of common
stock of the California Corporation was automatically converted into one share
of the Registrant's common stock, $0.001 par value per share, at the time the
Reincorporation became effective. In addition, the Registrant adopted the
California Corporation's 1991 Stock Option Plan and the California Corporation's
1998 Stock Option Plan. Each stock certificate representing issued and
outstanding shares of common stock of the California Corporation continues to
represent the same number of shares of common stock of the Registrant. The
California Corporation's common stock was quoted on the Nasdaq National Market
System and, the Registrant's common stock continues to be quoted on the Nasdaq
National Market System under the same symbol ("TRKN") as the shares of the
California Corporation's common stock had been traded.
The Reincorporation was approved by the shareholders of the California
Corporation at the annual meeting of stockholders of the California Corporation
held on May 16, 2002 for which proxies were solicited pursuant to Section 14(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In accordance with paragraph (d) of Rule 414 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), the Registrant, as
the successor registrant to the California Corporation, hereby expressly adopts
the Registration Statement of the California Corporation on Form S-8,
Registration Statement No. 333-73445, as its own Registration Statement for all
purposes of the Securities Act and the Exchange Act, which adoption is effective
as of and at the effective time of the Reincorporation.
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Trikon Technologies, Inc., a
California corporation and the predecessor of the Registrant (the "California
Corporation"), with the Securities and Exchange Commission are specifically
incorporated herein by reference and made a part hereof:
o Annual Report on Form 10-K for the year ended December 31, 2001,
filed with the Commission on March 22, 2002;
II-1
o Definitive Proxy Statement for the 2002 Annual Meeting of
Stockholders, filed with the Commission on April 22, 2002;
o Current Report on Form 8-K dated April 16, 2002, filed with the
Commission on April 23, 2002;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2002,
filed with the Commission on May 10, 2002;
o Current Report on Form 8-K dated May 16, 2002, filed with the
Commission on May 22, 2002; and
o The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A, filed on July 21, 1995 and
amended on August 21, 1995 (Commission File No. 0-26482), and as amended further
as a result of the reincorporation merger reported in the Current Report on Form
8-K dated May 16, 2002 listed above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all the
securities offered have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superceded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supercedes such statement. Any statement
modified or superceded shall not be deemed, except as so modified or superceded,
to constitute part of this Registration Statement.
Item 4. Exhibits.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation provides that, to the
extent permitted by the Delaware General Corporation Law ("DGCL"), directors of
the Registrant shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Section 102(7) of the DGCL, however, states that such a provision may not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, relating to
unlawful dividends, distributions or the repurchase or redemption of stock or
(iv) for any transaction from which the director derives an improper personal
benefit. The Registrant's Certificate of Incorporation provides further that the
Registrant shall indemnify to the fullest extent permitted by the DGCL
(including Section 145 of the DGCL), as the same may be amended from time to
time, any and all persons whom it has the power to indemnify under the DCGL.
II-2
The Registrant's By-Laws provide that the Registrant shall indemnify
and hold harmless, to the fullest extent permitted by the DGCL, any director,
officer, employee or agent of the Registrant or any person serving at the
request of the Registrant as a director, officer, employee or agent of any other
entity. Section 145 of the DGCL provides that a corporation may indemnify the
persons named in the preceding sentence against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement, actually and reasonably
incurred in connection with any threatened, pending or completed legal
proceedings in which such person is involved by reason of the fact that he is or
was a director, officer, employee or agent of the Registrant (or serving in any
such capacity with another business organization at the request of the
Registrant) if he acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal action or proceeding, if he had no reasonable cause
to believe that his conduct was unlawful. If the legal proceeding, however, is
by or in the right of the Registrant, such director, officer, employee or agent
may not be indemnified in respect of any claim, issue or matter as to which he
shall have been adjudged to be liable to the Registrant unless a court
determines otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement. Exhibit numbers correspond to the numbers in exhibit
table of Item 601 of Regulation S-K.
2.1 Agreement and Plan of Merger, between Trikon
Technologies, Inc., a Delaware corporation, and
Trikon Technologies, Inc., a California corporation.*
3.1 Certificate of Incorporation of Trikon Technologies,
Inc., a Delaware corporation.*
3.2 By-laws of Trikon Technologies, Inc., a Delaware
corporation.*
5 Opinion of McDermott, Will & Emery.#
23.1 Consent of Ernst & Young #
23.2 Consent of McDermott, Will & Emery (contained in
Exhibit 5).
99 Trikon Technologies, Inc. 1991 Stock Option Plan, as
amended.**
- -------------------
* (Filed as an exhibit to the Registrant's Proxy Statement for the 2002
Annual Meeting of Stockholders, and incorporated herein by reference.)
** (Filed as an exhibit to the Registrant's Proxy Statement for the 2001
Annual Meeting of Stockholders, and incorporated herein by reference.)
# Filed herewith.
II-3
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Newport, Gwent, United Kingdom, on the 12th day of June, 2002.
TRIKON TECHNOLOGIES, INC.
By: /s/ Nigel Wheeler
-------------------------
Nigel Wheeler
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Nigel Wheeler Chief Executive Officer, President and Chief June 12, 2002
- -------------------------------- Operating Officer and Director
Nigel Wheeler (Principal Executive Officer)
/s/ William Chappell Chief Financial Officer and Secretary June 12, 2002
- -------------------------------- (Principal Financial and Accounting
William Chappell Officer)
* Chairman of the Board and Director June 12, 2002
- --------------------------------
Christopher D. Dobson
* Director June 12, 2002
- --------------------------------
Richard M. Conn
* Director June 12, 2002
- --------------------------------
Stephen N. Wertheimer
* Director June 12, 2002
- --------------------------------
Robert R. Anderson
* By: /s/ Nigel Wheeler
------------------------
Nigel Wheeler
Attorney-in-Fact
II-6